THE ADA AND LOOK-GOOD, FEEL-GOOD LEGISLATION

As we consider the Americans with Disabilities Act ("ADA") ten years after its enactment, the typical response is to congratulate our representatives for enacting sweeping legislation to promote the rights of the disabled. In fact, no one, it seems, is willing to question the ADA's goal of helping people with disabilities. Yet it is also the case that the ADA imposes substantial burdens on business and government -- including the involvement of the Department of Justice in the management of private companies and local government agencies through the issuance of detailed regulations explaining how to comply with the Act -- because of the refusal of Congress to make the hard decisions associated with the enactment of an Act as broad as the ADA.

We would do well to consider the consequences of Congress' unwillingness to embrace its lawmaking responsibilities, as it did when it enacted the ADA and as it has with other laws -- including a host of environmental, disabilities, and religious liberty legislation -- that look good and feel good but that shift the hard choices and the burdens of the law onto the executive branch or the states. The Americans with Disabilities Act, the Line Item Veto Act, the Religious Freedom Restoration Act, the proposed Religious Land Use and Institutionalized Persons Act, and even the Line Item Veto Act fall into this category. Congress's persistent failure to fully assume its lawmaking responsibilities is warping the constitutional fabric of this country and undermining the public good.

Although current legislative practice might make it hard to detect, the Constitution was intended to force representatives to shoulder the heavy responsibility of serving the public good (as opposed to serving interest groups or the latest opinion poll). The Framers rejected the right of the people to instruct their representatives -- or self-rule -- and instead delegated all lawmaking authority and responsibility to elected representatives in Congress.

The Framers operated from the proposition that all those holding power would attempt to abuse that power through misuse, irresponsibility, or overreaching. The Constitution contains numerous structures intended to stem such abuses of power: enumerated powers, separation of powers, reporting requirements for both Congress and the President, and a bill of rights. Predictably, from the Framers' point of view, the heavy mantle of responsibility for the public weal placed on members of Congress has tempted them to search for ways of looking responsible while avoiding the brunt of such responsibility.

Hence, the phenomenon of look-good, feel-good legislation.

Common wisdom, whether expressed by academics or by members of Congress, belittles the constitutional requirement that Congress make the law. We are told, in effect, that the constitutional design is impracticable, so the unconstitutional delegation of power and responsibility must be acceptable. During hearings on legislation suggesting that members of Congress review at least the important rules issued by executive agencies, some House members were incredulous at the notion that they could take on that "extra" burden.

When one's job is defined (not by the Constitution but by current practices) by interest groups and opinion polls (as opposed to your own inner judgment) and one labors in an institution that has expanded its sphere of power through abuse of the various enumerated powers in Article I of the Constitution and Section 5 of the Fourteenth Amendment (and therefore believe yourself competent to legislate on almost any topic under the sun), there is never enough time in the day. The problem, though, is not the brevity of the day.

The Americans With Disabilities Act As Look-Good, Feel-Good Legislation

The Americans with Disabilities Act was pushed by President George Bush as a civil rights law for the disabled and modeled on the civil rights laws redressing race-based discrimination. The ADA's scope is enormous: it applies to state and private employment, public institutions, and places of public accommodation. Its language requires "reasonable accommodation" of the disabled. Congress, however, did not determine to what extent the disabled were to be accommodated in the various categories established by the law. Members of Congress did not weigh the competing factors or wrack their brains to find the right balance.

Rather, having taken this apparently high ground of civil rights, they then delegated the policy choice to be made in each scenario to the Department of Justice (DOJ), which was charged with interpreting the Act. The DOJ has issued an avalanche of regulations that have transformed the "reasonable accommodation" of the Act into mandatory and unreasonable accommodation burdening state and local governments and private employers. Under the ADA, the DOJ now is micromanaging many state institutions and programs, for example, the care of the sick or disabled in state prisons. The regulations read like a totalitarian's daily jottings: the arc of water from a water fountain shall be 4 inches high at its highest arc; carpet shall be three-quarters of an inch.

Theoretically, when Congress burdens the states significantly, they will resist and that resistance is supposed to be felt in Congress. On this reasoning, the ADA would not have been passed or last long. This is the famous "political safeguards of federalism" theory set forth originally by Professor Herbert Wechsler of Columbia University School of Law and more recently endorsed by Professor Larry Kramer of New York University Law School.

The Political Safeguards Of Federalism Fail

The theory, though, does not make any sense of legislation like the ADA, which protects the rights of the disabled, a politically irresistible group. Indeed, the ADA looks and feels so good on its surface that lawmakers, whether federal or state, rush to back it. In doing so, they sidestep the hard policy questions posed by the Act, and pretend its burdens do not disserve the public interest. Such legislation tempts all lawmakers (federal and state) to enact and live with laws that make the lawmaker look good at the price of the public good.

For example, the ADA's huge burdens are disproportional to its benefits, the cost to the states is huge, and even though common sense dictates a different legal regime, the states have not mounted the united resistance necessary to throw off the yoke of the ADA through a congressional amendment or judicial challenge. The reason is simple, and it defies the idea that the states should resist any encroachment on their authority: no representative wants to appear to be opposed to the disabled. Thus, legislators, whether state or federal, turn away from the best interests of their constituents and away from the interests of state and local governments, and turn towards a flattering spotlight.

By way of illustration, in Olmstead v. L.C. ex rel. Zimring, the Supreme Court recently considered whether the states are required to mainstream the disabled into community homes. Before the ADA, each state had the ability to choose how best to handle a disabled individual's needs. Some individuals were given community placement, and some were placed in state hospitals. Significantly, the individual's needs and the state's resources determined the answer.

The ADA directs the states to choose the more expensive mainstreaming. The state's resources or its judgment regarding the best interests of the particular disabled individual are secondary considerations. The mainstreaming requirement even applies to state prisons, which could be forced to duplicate medical services in each prison and could be prohibited from clustering expensive medical services, like dialysis, in a single prison. Not only does the ADA limit the state's discretion to decide how to best to address a particular disabled individual's situation, it also does not provide any federal funds to help the state pay for the increased costs associated with mandatory mainstreaming.

When the mainstreaming issue made it to the Supreme Court, twenty-one states initially opposed the mainstreaming requirement, which can be expensive and curtails the states' prerogative to care for the disabled as they see fit. Then the disabilities lobby became involved. Once the disabilities lobby was through, only seven states retained that position while the other fourteen publicly withdrew their opposition. Though their original position was legally supportable and was motivated by the desire to retain the ability to decide for themselves how to deal with the disabled, fourteen states abandoned this position so as not to appear opposed to the rights of the disabled.

Although no one wants to see the disabled treated badly, Congress cannot avoid constitutional limitations just because legislation looks good and feels good.